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Terry v. Colvin

United States District Court, S.D. Indiana, New Albany Division

September 12, 2014

ANNA TERRY, Plaintiff,



Plaintiff Anna Terry ("Ms. Terry") requests judicial review of the final decision of the Commissioner of the Social Security Administrator ("the Commissioner"), denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"). For the following reasons, the Court AFFIRMS the Commissioner's decision.


A. Procedural History

Ms. Terry filed her applications for DIB and SSI on April 24, 2008, alleging a disability onset date of March 3, 2008. These claims were initially denied on July 30, 2008, and upon reconsideration on December 22, 2008. Thereafter, Ms. Terry requested a hearing, which she later requested be withdrawn. On April 7, 2010, her request for hearing was dismissed. On May 24, 2010, Ms. Terry submitted a request to have the dismissal set aside because she did not understand the ramifications of withdrawing her request for a hearing. Administrative Law Judge Christopher B. McNeil ("the ALJ") denied the request. Ms. Terry requested review of the dismissal, which was granted by the Appeals Council. On December 23, 2010, the Appeals Council reinstated Ms. Terry's request for a hearing.

A hearing was originally scheduled to take place on August 4, 2011 before the ALJ. On July 19, 2011, the ALJ informed Ms. Terry's counsel that he was being reassigned to a different district. That same day, July 19, 2011, Ms. Terry filed a request for reassignment of her case to a different ALJ in the same district. The ALJ determined there was good cause-to avoid additional cost and delay-and granted the request by telephone on July 22, 2011. It is unclear why, but the August 4, 2011 hearing was rescheduled to January 27, 2012. The ALJ ultimately did not recuse himself and presided over the video hearing, at which Ms. Terry appeared in person and by her attorney. At the hearing, the ALJ explained that his superiors at the Cincinnati and Columbus Offices of Disability Adjudication and Review ("ODAR") had determined that recusal was not appropriate or required and they instructed him that he should remain the ALJ assigned to Ms. Terry's case. Ms. Terry, a medical, and a vocation expert each testified at the hearing.

On March 2, 2012, the ALJ denied Ms. Terry's applications, and on May 22, 2013, the Appeals Council affirmed the ALJ's denial, thus making it the final decision of the Commissioner for the purposes of judicial review. 20 C.F.R § 416.1481. On July 23, 2013, Ms. Terry filed this appeal requesting judicial review pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).

B. Medical History

Ms. Terry was twenty-six at the time of her alleged onset date and she has a high school education. She suffers from low back pain, neck pain, headaches, anxiety, and depression. She has intermittently worked as a production machine tender, cashier, stock clerk, material handler, and hand packer, but has not worked since May 2008. Specifically, Ms. Terry loaded and unloaded machines at Jay Package and American Plastics and was a cashier for Big Lots and McDonalds.

Ms. Terry began experiencing low back pain radiating into her lower extremities in early 2008. The medical records show that she was treated from December 2008 through early 2009, in early 2010, and throughout 2011. Ms. Terry's medical records include MRI testing, nerve conduction studies, and treatment plans including pain medication, injections, and physical therapy. She also received some treatment for depressive and anxiety disorders. As necessary, details about Ms. Terry's impairments and treatment will be discussed below.

C. The ALJ's Decision

The ALJ began his decision by memorializing what he characterized as ex parte communications between himself and Cincinnati ODAR hearing office director Mary Jane Fortner ("Fortner") and Chief Administrative Law Judge Christine King ("ALJ King") regarding Ms. Terry's case. Fortner and ALJ King ordered that the ALJ retain jurisdiction over Ms. Terry's case, notwithstanding his intent to recuse himself. The ALJ further summarized emails between himself and ALJ King and Columbus ODAR Chief Administrative Law Judge John Montgomery ("ALJ Montgomery"). Specifically, the ALJ King informed the ALJ that reassignment to a new district was not good cause for recusal. ALJ Montgomery stated that Ms. Terry's counsel could not forum shop and that additional cost and delay needed to be avoided.

The ALJ then made the following findings as part of his decision. At step one, he determined that Ms. Terry had not engaged in substantial gainful activity since March 3, 2008, the alleged onset date. At step two, the ALJ found the following severe impairments: lumbar degenerative disc disease, depression, and generalized anxiety disorder. He determined Ms. Terry had the following non-severe impairments: left ear deafness and migraine headaches. At step three, the ALJ found Ms. Terry does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded that Ms. Terry has the residual functional capacity to perform sedentary work; lift and/or carry up to twenty pounds occasionally and up to ten pounds frequently; sit up to six hours during the course of an eight-hour workday with normal breaks and stand/walk four to six hours; occasionally climb ramps or stairs, crouch and crawl; never climb ladders, ropes, or scaffolds; avoid unprotected heights and machinery; understand and remember simple instructions and maintain attention to complete simple repetitive tasks; work in an object focused work setting and adapt to routine changes in a static work setting; and is ...

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